Margaret Scrimzeour v. Alexander Wedderburn of Kingennie
Date: 19 July 1670 Case No. No. 167.
A tutor testamentary delaying for some time to accept, was not found liable for what perished during non-acceptance.
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Umquhile Major William Scrimzeour having nominated Alexander Wedder-burn of Kingennie, and two others to be tutors to his daughter; she now pursues a tutor account, wherein this question arose, and was reported to the Lords by the auditors, viz. the defunct having died in September 1650, the tutor did not accept the nomination, or begin to act till the end of the year 1653, in which time the tutor alleged that a part of the pupil's means perished, and became insolvent; and craved to be liberated thereof, on that ground in his discharge. It was alleged for the pupil, that the tutor must be liable from the time that he knew that he was nominated tutor, for albeit he might have abstained absolutely, yet once accepting the tutory by nomination of a testament, wherein a legacy was left to himself, he must count as if he had accepted it at the first, for which there were adduced many citations of law. It was answered for the tutor, that in the Roman law, tutors were obliged to accept so soon as they knew their nomination, unless they could free themselves by the excuses allowed in that law; but with us it is absolutely free to accept or refuse without any excuse; and it is only the acceptance that obliges, and so can have no effect ad præterita as to that which perished before acceptance; especially in this ease, the defender being but one of three tutors nominated, he ought to have had a time to endeavour with the rest to accept, and his lying out was in such a time, in which judicatures did cease by war and troubles. The English, after the battle of Dunbar in September 1659, being possessed of Edinburgh, and the public records, there was no Session kept till the year 1652 or 1653.
The Lords found the tutor was not liable for any thing that perished before his acceptance.
Stair, v. 1. p. 698.***Gosford reports this case:
In an action of count and reckoning pursued at the said Margaret's instance against Kingennie as her tutor, wherein he was charged for omission in not pursuing-several debtors. It was alleged for the defender, that he being but one of three tutors nominated, whereof one did altogether refuse, and another delayed to near three years after the testator's death, at which time the defender did likewise accept, that therefore he could only be liable for omission from the date of his acceptation, especially seeing the testator was killed at Dunbar, after which judicatories were not established for more than two years. It was replied, that it is clear by the civil law, that tutors are liable from the time of their nomination, at least from the time that it might come to their knowledge, as is clear, D. L. 5. and L. 8. De Administratione et periculo tutorum. The Lords, notwithstanding of the reply, did sustain the defence, and found that there was great difference betwixt our law and the civil law as to the acceptation of tutors, for by their law officium tutoris was necessarium et publicum, and none could refuse it but upon a just excuse alleged and found so by the Judge; whereas, by our law, the nomination of a tutor does not oblige to accept; so that it being voluntary, until he declares himself under his hand, that he accepts, or that gerit se pro tutore he is not liable for by-gones; the only remedy that we have, being, that if a tutor nominate cessaverit per annum et diem, there is place for a tutor-dative; and this decision the Lords did consider in general without any speciality in this case, and declared that thereafter they would adhere thereto.
